JUDGMENT
A.K. Mitra, J.
1. This second appeal has been preferred challenging the judgment dated 28.5.1991 and decree dated 4.6.1991 passed by the learned Asstt. District Judge, Howrah in Title Appeal No. 226/90 reversing the judgment dated 31.8.1990 and decree dated 7.9.1990 passed by the learned Munsif, 5th Court at Howrah in Title Suit No. 15 of 1987.
2. The Title Suit No. 15 of 1987 relates to eviction of the defendant from the suit premises along with prayer for khas possession and mesne profits.
3. The case as has been made out by the plaintiff in the plaint is, inter alia, as follows:
The plaintiff is the absolute owner and landlord of the suit property and he got it by virtue of a deed of partition dated 16.5.1984. The said deed of partition was effected by and between the plaintiff, one Sri Dasharathi Dhang and Bholanath Dhang, amongst these three co-sharers. The defendant was a premises tenant under the plaintiff at a monthly rental of Rs. 33/- only payable according to English Calender month. The defendant is a habitual defaulter and he defaulted in payment of rent from the month of October 1983. The plaintiff requires the suit premises for his own use and occupation since he is suffering from serious dearth of accommodation. The plaintiff and his wife are living in a room situated in the second floor of the holding No. 45/5 Sri Ram Dhang Road, Salkia, Howrah and the said room belongs to the son of the plaintiff that is Rabi Sankar Dhang. The ownership of first floor and second floor of the said building had already been transferred by the plaintiff in favour of his four sons by a registered deed of settlement dated 14.7.1966 and said four sons of the plaintiff and owing and possession exclusively the floor and second floor of the said building in respect of manner as per the terms of the aforesaid deed of settlement. By virtue of the deed of settlement the plaintiff had only retained the limited ownership that is the life interest only and possession of the ground floor of holding No. 45/5 Sri Ram Dhang Road. Due to serious paucity of accommodation, particularly, of a bed room in the ground floor the plaintiff and his wife have become compelled to live in the said second floor room which is now owned by the 3rd son of the plaintiff. The plaintiff is acute patient of serious heart trouble any hypertension and had already suffered twice heart attack and this ailment and Cardiac trouble is a continuous one and during the last heart attack which look place a few weeks earlier to the filing of this suit was of so serious nature that the plaintiff became absolutely unconscientious and was in almost dying condition and as such he had to be admitted in Medical College and Hospital for the heart treatment and his treatment is still – going on and the plaintiff because of his present ill-health is unable to use the staircase and the plaintiff is feeling great trouble and inconvenience and until and unless the defendant is evicted from the suit premises the plaintiff will not be able to meet his said bona fide and genuine need of bed room in the ground floor inasmuch as the suit premises and his bath room and privy in the ground floor are required to be used by the plaintiff. The plaintiff has also pleaded that he has no other suitable accommodation elsewhere to meet his aforesaid requirement. The plaintiff further pleaded that the defendant is also liable to be evicted from the suit premises since the defendant is guilty of committing acts of waste and damage to the suit property in contravention of Clauses (m), (o) & (p) of Section 108 of the Transfer of Property Act, by making illegal partition wall of the suit premises effecting material damages. The defendant is guilty of nuisance and annoyance. The aforesaid are the grounds which the plaintiff took in the plaint for eviction of the defendant. The plaintiff thereafter pleaded in paragraph 7 of the plaint that he has served notice to quit dated 19.11.1986 to the defendant through his advocate thereby terminating the tenancy. The said notice was sent to the defendant under Registered Post with A/D and as well as Under Certificate of Posting and the defendant duly received the said notice putting signature on the Acknowledgment Card. According to the plaintiff, cause of action arose on and from 1.1.1987 and the plaintiff as such prayed for the decree for eviction and khas possession along with mesne profits cost of the suit etc. The schedule shows that the suit premises consist of a back bed room together with common user of bath room, privy etc. together with all appurtenances, privileges attached thereto situated at the ground floor comprised within holding No. 45/5 Sriram Dhang Road, Salkia, Howrah.
4. The defendant contested the suit by filing written statement. In the written statement the defendant pleaded that the suit is not maintainable in its present form, the suit is speculative, frivolous, harassing, mala fide and motivated and as such the suit should be dismissed. The suit is also bad for non-joinder of the necessary party. The plaintiff has wilfully failed and/or neglected to add the name of the other owner that is his wife Smt. Jamuna Bala Dhang in the above suit. The suit is barred by principle of estoppel, waiver and acquiescence. The suit is barred by provision of Section 10 of the Code of Civil Procedure. The defendant in his written statement denied all the allegations levelled against him in the plaint. The defendant denied the allegation of default in payment of rent as alleged in the plaint. The defendant also denied that the plaintiff requires the suit premises for his own use and occupation or the plaintiff has any dearth of accommodation or the plaintiff because of his acute illness requires the premises. The defendant also, denied the allegation made out in the plaint that the defendant is liable to be evicted from the suit premises for violation of Clause (m), (o) & (p) of the Transfer of Property Act, 1982. The defendant also denied the allegation of annoyance and nuisance made by the plaintiff against him. The defendant denied proper service of notice.
5. Thereafter in the written statement the defendant made out a case that the suit filed by the plaintiff is not maintainable and the same should be dismissed. The defendant pleaded that he filed a suit in the 5th Court of the Munsif at Howrah being T.S. No. 157/86 for declaration and permanent injunction against the plaintiff when he tried to reduce the extent of tenancy of the defendant forcibly. The suit of 1986 is earlier and the said suit should be tried test. The defendant pleaded that the instant suit is barred by the provisions of Section 10 of the Code of Civil Procedure. The defendant also pleaded that the plaintiff has filed this suit in order to evict him from the tenanted premises with a mala fide intention to induct new tenant on receiving high premium. The defendant further pleaded that the plaintiff created some property deed in favour of his sons with a mala fide intention to evict him. The copy of the said deed have not been made available to the defendant nor the said deed has been filed in Court. The defendant further pleaded that the extent of tenancy has not been properly described and the wooden partition is existing for a long time about 27 years since his induction in the suit premises and he has not made any illegal partition wall in the suit premises. The defendant prayed for dismissal of the suit.
6. On the above pleadings six issues were framed. As it appears from the judgment of the learned trial Judge one additional issue was framed at the time of writing judgment for the adjudication of the suit which is issue No. 7. The seven issues are as follows:
(1) Is the suit maintainable in its present form?
(2) Is the notice properly served upon the defendant and is it legally valid and sufficient?
(3) Is the defendant defaulter in payment of rent?
(4) Is the premises occupied by the defendant reasonably required by the plaintiff for his own use and occupation?
(5) Is the plaintiff entitled to get decree as prayed for?
(6) What other reliefer reliefs plaintiff is entitled to get?
(7) Is the suit barred under Section 13(3A) of West Bengal Premises Tenancy Act?
7. On the above issues the suit was heard by the learned trial Judge and was dismissed challenging the said order of dismissal of the suit, appeal was preferred and the first Appellate Court decreed the suit reversing the judgment of the learned trial Judge.
8. Now, before hearing the instant second appeal substantial question of law are formulated in the manner as follows on which the learned counsel for the respective parties are to make their submissions:
(1) Whether reasonableness is there or reasonable requirement for the landlord as claimed or alleged in the plaint.
(2) Whether the suit is not maintainable in view of the provisions of Section 13(3A) of the West Bengal Premises Tenancy Act, 1956.
(3) Whether the partition and/or deed of settlement attracts provisions of Section 13(3A) of the West Bengal Premises Tenancy Act.
(4) Whether Section 10 of the Code of Civil Procedure is attracted in view of the pendency of Title Suit No. 157/86 filed by the defendant against the plaintiff in respect of the same suit premises.
9. The learned counsel for the appellant submits that the first Appellate Court did not discuss the reasons or reasonableness of the requirement of the plaintiff when granting a decree for eviction. The learned counsel submits that in view of the provisions of Section 96 of the Code of Civil Procedure the learned Appellate Court below is to discuss all the issues before coming to a conclusion and in this case that has not been done and consequently that has vitiated the judgment and decree passed by the learned Appellate Court. According to the learned counsel for the appellant the requirement as shown by the landlord/plaintiff is not bona fide and the deed of settlement has been created for the purpose, and the illness of the plaintiff is a plea to evict himself. In this context the learned counsel for the appellant placed reliance in the decision (Vidhyadhar v. Mankikrao and Anr,). The learned counsel submits that in this decision the Hon’ble Apex Court relying on a Privy Council decision observed in the manner as follows:
“In Lal Achal Ram v. Raja Kazim Hussain Khan, (1905) 32 Ind. App. 113, the Privy Council laid down the principle that a stranger to a sale deed cannot dispute payment of consideration or its adequacy. This decision has since been considered by various High Courts and a distinction has been drawn between a deed which was intended to be real or operative between the parties and a deed which is fictitious in character and was never designed as genuine document to effect transfer of title. In such a situation, it would be open even to a stranger to impeach the deed as void and invalid on all possible ground. This was also laid down in Kamini Kumar Deb v. Durga Charan Nag AIR 1923 Calcutta 521 and again in Saradindu Mukherjee v. Smt. Kunja Kamini Roy . The Patna High Court in Jugal Kishore Tiwari v. Umesh Chandra Tiwari, and the Orissa High Court in Sanatan Mahapatra v. Hakim Mohammad Kazim Mohammad, , have also taken the same view.”
10. The above decisions appear to be based on the principle that a person in his capacity as a defendant can raise any legitimate plea available to him under law to defeat the suit of the plaintiff. This would also include the plea that the sale deed by which title to the property was intended to be conveyed to plaintiff was void or fictitious or, for that matter, collusive and not intended to be acted upon. Thus, the whole question would depend upon the pleadings of the parties, the nature of the suit, the nature of the deed, the evidence led by the parties in the suit and other attending circumstances. For example, in a landlord tenant matter where the landlord is possessed of many properties and cannot possible seek eviction of his tenant for bona fide need from one of the properties, the landlord may ostensibly transfer that property to a person who is not possessed of any other property so that that person, namely, the transferee, may institute eviction proceedings on the ground of his genuine need and thus evict the tenant, who could not have been otherwise evicted. In this situation, the deed by which the property was intended to be transferred, would be a. collusive deed representing a sham transaction which was never intended to be acted upon. It would be open to the tenant in his capacity as defendant to assert, plead and prove that the deed was fictitious and collusive in nature. We, therefore, cannot subscribe to the view expressed by the Privy Council in the case of Lal Achal Ram (1905)32 Ind App 113) (supra) in the broad terms in which it is expressed but do approve the law laid down by the Calcutta, Patna and Orissa High Courts as pointed out above.
11. The learned counsel for the appellant further submits that illness of the plaintiff is a mala fide to evict the defendant from the suit premises. According to the learned counsel for the plaintiff reasonableness of the requirement of the landlord has not been considered by the learned Appellate Court below at all which is mandatory arid non-consideration of the same makes the judgment of the first Appellate Court bad. In this context the learned counsel for the appellant relies on a decision (Bimalendu Bhusan Das v. Finn Mitra and Ghosh) where it has been held:
“Reasonable requirements within the meaning of Section 13 in my view is not merely the subjective reasonableness from the stand point of the landlord. But it means objective reasonableness which should be ascertained by considering a subjective effect on the tenant as well along with the subjective requirement of the landlord. In other words by weighing the genuine or real requirement of the landlord with the inconvenience that the tenant will suffer by effect of an eviction decree reasonableness of the requirement of the landlord should be ascertained for its purpose as a ground for eviction. A requirement that only emphasis the benefits intended by the landlord to achieve, be it convenience of business, be it financial gain by cutting down the rent expenses of the landlord or be it the psychological emphasis of concentrating their business in the property owned by the landlord instead of in several premises rented by them, without any consideration to what the tenant will suffer does not in my view satisfy the reasonable requirement within the meaning of Section 13 Sub-section (1) of the Premises Tenancy Act, 1956. By applying that standard I hold that the evidence in the case do ‘ not establish that the landlord’s requirement is reasonable. For that reason also the plaintiff is not entitled to the decree prayed for.”
12. Learned counsel for the appellant submits that the partition deed was executed on 16.5.1984 the deed of settlement has executed on 14.7.1986 and the instant suit was filed on 19.1.1987 and as such the instant suit is hit by the provisions of Section 13(3A) of the West Bengal Premises Tenancy Act inasmuch as partition being a transfer as well as the settlement also being a transfer the suit has been filed within three years and as such the suit is not maintainable. In view of the provisions of Section 13(3A) of the West Bengal Premises Tenancy Act, the learned counsel relied on the provisions of Section 2(24) of the Indian Stamp Act and submits that the terms settlement has been defined there in the manner as follows:
“Settlement means any non-testamentary deposition, writing, movable or immovable property made–
(a) in consideration of marriage;
(b) for the purpose of disturbing property of the settlor among his family or those for whom he desires to provide, or for the purpose of providing for some person dependant on him, or
(c) for any religious or charitable purpose; and includes an agreement in writing to make such a disposition (and, where any such disposition has not been made in writing, any instrument regarding whether by way of declaration of trust or otherwise, the terms of any such disposition was.”
13. The learned counsel also placed reliance on the definition of conveyance as given in Section 2(1) of the Indian Stamp Act which is as follows:
“Conveyance– “conveyance” includes a conveyance on sale and every instrument by which property, whether movable or immovable, is transferred inter vivos and which is not otherwise specifically provided for by schedule. The learned counsel for the appellant also submits that to, this Clause 10 by way of West Bengal amendment the following explanation has been added:–
Explanation:- An instrument–
(i) where by a co-owner of a property having defined share therein transfer such share or part thereto to another co-owner of the property or divides such property among co-owners or–
(ii) where by a partnership transfers is share in the property of the partnership business to another partner or to other partners, whether separately or together with transfer of other business, assets on retirement or dissolution, or whereby he contributes to the capital partnership firm of transferring his right and title to or interest in, any property, is for the purpose of this clause, an instrument by which property is transferred. The learned counsel also placed the definition of instrument from Section 2(14) of the Indian Stamp Act and submitted that the definition of instrument runs in the manner as follows:
Instrument– “Instrument includes every document by which any right or liability is, or purports to be, created, transferred limited, extended, extinguished or regretted”.
14. The learned counsel for the purpose of briefing that this partition and settlement are transfers also placed reliance by way of instrument also placed reliance on the definition of the term instrument as provided in Section 3 of the Transfer of Property Act and settlement as provided in Section 2(b) of the Specific Relief Act.
15. Relying on these definitions the learned counsel for the appellant submits that both the partition and the settlement executed herein are transfers and as such the acquisition of the suit property being made by the landlord by way of transfer, the instant suit is barred under-section 13(3A) of the West Bengal Premises Tenancy Act.
16. The learned counsel also submits that these are documents on record and the learned Appellate Court below failed to consider the said documents on record and passed the judgment and decree illegally. Lastly, the learned counsel for the appellant submits that in view of the pendency of the earlier suit filed by the defendant in T.S. No. 15/87/plaintiff herein in T.S. No. 157/86 in respect of the self-same premises the instant suit should not have been proceeded with inasmuch as it attracts Section 10 of the Code of Civil Procedure. On the above submissions the learned counsel for the appellant supports the judgment of the trial Court and submits that the judgment and decree passed by the Appellate Court below should be set aside and the judgment passed by the trial Court should be upheld.
17. The learned counsel appearing for the respondent submits that on the first score reasonableness of the requirement has been proved through sufficient evidence and neither it has been doubted nor it has been disputed by both the trial Court as well as the Appellate Court below. The trial Court mainly dismissed the suit on the point of maintainability observing attraction of Section 13(3A) of the West Bengal Premises Tenancy Act. In the instant case the Appellate Court below has discussed the issue of bona fide requirement of the plaintiff and observed that the plaintiff requires the suit premises for his own use and occupation and this observation of the Appellate Court below gets support from the evidence on record as well as from the detailed discussion of the trial Court on that particular issue. The learned counsel for the respondent submits that since this question of bona fide requirement becomes a concurrent finding of the Courts below the same cannot be changed again in second appeal. The learned counsel also submits that the High Court in second appeal cannot reappreciate the evidence and reverse finding of fact arrived at by the first Appellate Court. The learned counsel in this context placed reliance upon a judgment of the Apex Court (Mohd. Amirullah Khan and Ors. v. Mohd. Hakumullah Khan and Ors.) In this decision the Hon’ble Apex Court observed “We would like to make it clear that the High Court while hearing the second appeal ought not to have reappreciated the evidence and reversed the findings of fact arrived at by the lower Appellate Court”.
18. The learned counsel further submits that the appellant filed an application being CAN 8242/01 before this High Court during the pendency of the instant second appeal and in that application the appellant alleged that one Debasish was a tenant in the ground floor and that he has vacated the ground floor room and handed over the possession in favour of the plaintiff/respondent and the plaintiff/respondent instead of occupying the said room, let out the said room at a higher rate in favour of one Rabi Banerjee. In the said application the plaintiff/respondent filed affidavit-in-opposition and denied the allegations made therein. One learned single Judge of this High Court when disposing of the said application directed the lower Appellate Court to decide the said issue as expeditiously as possible and directed remittance of the lower Court records to lower Appellate Court the taking additional evidence required and to try the said issue and return the evidence to this Court together with its finding thereon and reasons therefor. Accordingly, on remand the learned Appellate Court below decided the issue and set the records back to this Court along with his finding. It appears from the records that the learned Appellate Court below took evidence of both the sides from the issue and came to the following conclusion “on consideration of the evidence on record and documents, it is found that Debashis Das inducted Rabi Banerjee in the tenanted room in which Debashis was a tenant. Rabi was not inducted as a tenant by the plaintiff in the tenanted room in which Debashis was a tenant at a higher rate or at a higher selami. Debashis Babu did not hand over the possession to the plaintiff. Thus the issue as directed by the Hon’ble High Court is disposed of.
19. From this finding it appears that reasonableness of the requirement of the landlord was proved and both the Courts below came to concurrent findings of this issue.
20. On the second and third score the learned counsel for the respondent submits that no one can go beyond the pleadings. In this context the learned counsel placed reliance on a decision of the Apex Court (Vinod Kr. Arora v. Smt. Surjit Kaur). The Hon’ble Apex Court observed: “However, when the appellant entered the witness box, he gave up the case set out in the written statement and propounded a different ease that the hall had been taken on lease only for non-residential purposes. The perceptible manner in which the appellant had shifted his defence has escaped the notice and consideration of the Statutory Authorities. Both the Authorities have failed to bear in mind that the pleadings of the parties form the foundation of their case and it is not open to them to give up the case set out in the pleadings and propound a new and different ease. Another failing noticed in the judgments of the Rent Controller and the Appellate Authority is that they have been oblivious to the fact that the respondent had leased out the hall to the appellant only for a period of 11 months. Such being the case, even if the respondent had come to know soon after the lease was created that the appellant was using the hall to run a clinic, she may have thought it prudent to let the appellant have his way so that she can recover possession of the hall after 11 months without hitch whereas if she began quarrelling with the appellant for his running a clinic, she would have to be locked up in litigation with him for a considerable length of time and can obtain possession of the hall only after succeeding in the litigation. Yet another factor which vitiates he findings of the Rent Controller and the Appellate Authority is that both of them have overlooked Section 11 of the Act, and the sustainability of any lease transaction entered in contravention of Section 11. The Legislature, with a view to ensure adequate housing accommodation for the people, has interdicted by means of Section 11 the conversion of residential buildings into non-residential ones without the written consent of the Rent Controller. Admittedly, in this case the parties had not obtained the consent in writing of the Rent Controller for converting the hall in a residential building into a clinic. Such being the case, the appellant cannot get over the embargo placed by Section 11 by the pleading that the respondent was well aware of his running a clinic in the hall and that she had not raised objection at any time to the running of the clinic. Learned counsel for the appellant referred us to the decision in Dr. Gopal Dass Verma v. Dr. S.K. Bharadwaz and argued that the ratio laid down therein would be fully attracted to the facts of this case. It is true that in the said decision, it was held that when a leased premises was used by the leassee incidentally for professional purposes and that too with the consent of the landlord, then the case would go out of the purview of Section 13(3)(e) of the Delhi and Ajmer Rent Control Act, 1954 and consequently the landlord would not be entitled to see eviction of the tenant on the ground he required the premises for his own residential requirements. We find the facts in that case to be markedly different and it was the speciality of the facts which was largely instrumental in persuading this Court its decision in the aforesaid manner. Moreover, the Court had not considered the question whether the conversion of a residential premises into a non-residential one without the permission of the Rent Controller was permissible under the Delhi and Ajmer Rent Control Act if it was not permitted, how far the contravention would affect the rights of the parties. In our opinion, the more relevant decision to be noticed would be Kamal Arora v. Amar Singh, 1986 (suppl) SCC 481 where this Court declined to interfere with an order of eviction passed in favour of the landlord as the Court was of the view that even if the landlord and the tenant had converted a residential building into a non-residential one by mutual consent, it would still be violative of Section 11 of the Punjab Rent Restriction Act and therefore, the landlord cannot be barred from seeking recovery of possession of the leased building for his residential needs. We are of the view that the finding of the Rent Controller and the appellant authority about the appellant having taken the hall on lease only for running a clinic and that he had not changed the user of the premises have been rendered without reference to the pleadings and without examining the legality of the appellant’s contentions in the light of the Section 11 of the Act. We do not think the High Court has committed any error in law in ignoring the findings rendered by the Statutory Authorities about the purpose for which the hall had been taken on lease.”
21. The learned counsel also submits that the suit is not affected by the provisions of Section 13(3A) of the West Bengal Premises Tenancy Act inasmuch as partition is not a transfer and the learned trial Court misconstrued the provisions of this statute and observed that the partition was effected on 16.5.1984 and the suit was filed on 19.1.1987 and accordingly within three years the suit has been filed and the suit is not maintainable. In this context the learned counsel for the respondent first of all submits that new point or plea cannot be raised before High Court in a second appeal and placed reliance on a decision reported in AIR 1966 SC page 1024 (Krishna Pasuba Rao Kundapur v. Dattatraya Krishnajee Karani). In this case the Hon’ble Apex Court observed that the plea which was not raised in the first two Courts cannot be raised in the High Court. According to the learned counsel for the respondent though issue No. 7 was framed by the learned trial Court on this point but in the pleading nowhere it has been mentioned that the suit is not maintainable because of attraction of Section 13(3A) of the West Bengal Premises Tenancy Act. The learned counsel also relies on a decision (V.N. Sarin v. Ajit Kr. Poplai and Anr.). In this decision the Hon’ble Apex Court observed “Mr. Purshottam, however, contends that when an item of property belonging to the undivided Hindu family is allotted to the share of one of the coparceners on partition, such allotment in substance amounts to the transfer of the said property to the said person and it is, therefore, an acquisition of the said property by transfer. Prima facie, it is not easy to accept this contention. Community of interest and unity of possession are the essential attributes of coparcenary property; and so, the true effect of partition is that each coparecener gets a specific property in lieu of his undivided right in respect of the totality of the property of the family. In other words, what happens that a partition is that in lieu of the property allotted to individual coparceners they, in substance, renounce their right in respect of the other properties; they get exclusive title to the properties allotted to them and a as a consequence, they renounce their undefined right in respect of the rest of the property. The process of partition, therefore, involves, the transfer of joint enjoyment of the properties by all the coparceners into an enjoyment in severally by them of the respective properties allotted to their shares. Having regard to this basic character of joint Hindu family property, it cannot be denied that each coparcener has an antecedent title to the said property, though its extent is not determined until partition takes place. That being so, partition really means that whereas initially all the coparceners have subsisting title to the totality or the property of the family jointly, that joint title is by partition transformed into separate titles of the individual coparceners in respect of several items of properties allotted to them respectively. If that be the true nature of partition, it would not be easy to uphold the broad contention raised by Mr. Purshottam that partition of an undivided Hindu family property must necessarily mean transfer of the property to the individual coparceners. As was observed by the Privy Council in Girija Bai v. Sadashiv Dhundiraj, 43 Ind App 151 at p. 161 : (AIR 1916 PC 104 at p. 108):
“Partition does not give him (a coparcener) a title or create a title in him; it only enables him to obtain what is his own in a disposition independent of the wishes of his former co-sharers”.
22. The learned counsel further submits that the plaintiff/land lord was a co-owner of the property and by virtue of partition the landlord did not acquire any new interest in the property and in fact, by virtue of partition the shares of the co-owners in the property was only finalised or point out. The learned counsel for the respondent relies on a decision reported in 1990 CWN page 797 (Charubala Dey v. Sarasi Bala Roy), This is a decision of one learned single Judge of this High Court and the Hon’ble Court in this decision the definition of the word “landlord” in the West Bengal Premises Tenancy Act, 1956 inclusive. It not only includes the owner of the property who is entitled to receive the rent but also any other person who collects rent on behalf of the owner either as Rent Collector or the Agent. The expression “any person who is entitled to receive rent” in Section 2(d) of the said Act clearly includes the owner of the property. As such the learned counsel for the respondent submits that first of all this plea was not raised in the pleadings before the two Courts below and the appellant cannot take this new point in argument before this High Court. The learned counsel for the respondent also submits that since partition is not a transfer which has also been construed by the learned advocate for the defendant the appearing before the Appellate Court below cannot be permitted to raise the same point before this second Appellate Court once again. The learned counsel for the respondent on the last score of submission points out that from the records it will appear that Title Suit No. 157/86 which was filed by the defendant/tenant earlier was as suit challenging reduction in the extent of tenancy and the instant suit has been filed by the plaintiff/ respondent herein on absolutely a different cause of action that is claiming eviction of the tenant (appellant herein) from the suit premises. Therefore, in any event, Section 10 of the Code of Civil Procedure is not attracted in the instant case. The learned counsel for the respondent submits that the judgment and decree passed by the Appellate Court below should be upheld and the instant appeal should be dismissed.
23. Heard the learned counsel for the parties. Considered their submissions. Perused the pleadings and evidence on record. There are four substantial questions of law which have been formulated by this Court when hearing this second appeal. The first question is the reasonableness of the requirement. It appears from the evidence on record and from the judgment passed by the trial Court as well as the learned Appellate Court below that requirement of the plaintiff could be proved beyond doubt and both the Courts below concurrently found this fact that the plaintiff requires the suit premises for his own use and occupation. In the decision (Mohan Singh v. Nihal Singh) the Hon’ble Apex Court observed that where there is concurrent finding of fact no interference should be made by the High Court. In another decision (Pakirappa Rai v. Seethamma Hengshu). The Hon’ble Apex Court observed that concurrent finding of fact even if erroneous cannot be interfered with by the High Court. Here the defendant even if after hearing of the application under Order 41 Rule 27 of the Code of Civil Procedure for taking additional evidence could not prove that requirement of the plaintiff was not genuine or not reasonable or the suit was filed with mala fide intention.
24. In so far as the second and third questions are concerned at the outset it is observed that it appears from the records that this defendant/ tenant filed a suit for declaration of tenancy in the year 1986, against this plaintiff accepting him as the landlord and after accepting him as landlord the tenant cannot dispute the title of the landlord under Section 116 of the Evidence Act which is clear on the subject. In this regard the decision of the Hon’ble Apex Court (Sri Ram Pasricha v. Jagannath and Ors.) can be relied on where it has been observed that in view of the provisions of Section 116 of the Evidence Act after accepting the landlord and tendering rent to him in a suit for eviction the tenant is estopped from questioning the title of landlord. In the instant case this tenant accepted the plaintiff as landlord filed a suit against him in 1986 tendering rent to this plaintiff and now he cannot challenge the title of the landlord. That apart in any view of the matter partition is not a transfer and the provisions of Section 13(3A) of the West Bengal Premises Tenancy Act is in no way attracted here inasmuch as by virtue of the partition the plaintiff did not become the landlord and in fact, the plaintiff was the co-owner of the property and the partition only confirm the extent of share of the plaintiff which included the suit premises.
25. In that view of the matter, in my opinion, second provisions of Section 13(3AJ is not attracted in the instant case and the alleged deed of settlement is also not a document by virtue of which the plaintiff became the landlord. Since the earlier suit was filed by the defendant/appellant for challenging the reduction of extent of tenancy which is pending the same cannot stall the proceedings of the instant suit which is a suit for eviction in respect of the suit premises. The other point that is violation of Clauses (m), (o) & (p) of Section 108 of the Transfer of Property Act need not be considered or answered inasmuch as the requirement of the plaintiff has been proved. The title of the plaintiff is also established by virtue of ownership and/or admission by the tenant. All the four questions of law referred to above are, therefore, answered in favour of the plaintiff/respondent herein and I respectively disagree with the submissions made by the learned counsel for the appellant and accept the submissions of the learned counsel for the respondent.
26. In view of the discussions and/or observations made above, the appeal is dismissed. The judgment and decree of the Appellate Court below is affirmed and accordingly the suit is also decreed in favour of the plaintiff. The parties will bear their own costs respectively.
Let the decree be drawn up accordingly. L.C.R. be sent down to the respective Courts below forthwith.